Other Barks and Bites for Friday, May 3: FTC Adds Ozempic and 300 Drugs to FDA’s Orange Book; Eight Major Newspapers Sue OpenAI, Microsoft for Copyright Infringement

This week in Other Barks & Bites: the Department of Commerce releases a plan to increase women’s employment in the semiconductor sector in order to meet CHIPS goals; the FTC adds 300 drugs to the FDA’s Orange Book of junk patent listings; and eight major U.S. newspapers sue OpenAI and Microsoft for copyright infringement related to ChatGPT.

CAFC Reverses Dismissal of Declaratory Judgment Suit Linked to Amazon’s APEX Program

The U.S. Court of Appeals for the Federal Circuit (CAFC) reversed a district court’s decision in Snaprays (dba SnapPower), v. Light Defense Group (LDG) on May 2, finding that Lighting Defense Group (LDG) purposefully directed extra-judicial patent enforcement activities at SnapPower in Utah. The opinion was authored by CAFC Chief Judge Moore.

Filing in France: A Strategy to Limit Extension Costs

A client’s recent experience applying for a European patent led to the development of a possible optimization strategy to address patent costs for clients. This client had made an initial U.S. filing and then extended his application in the form of a European patent application. His U.S. application went extremely well, and he obtained a quick grant with very few additional costs. This, unfortunately, was not the case with his European application.

Tillis Doubles Down on Calls for Biden to Scrap March-In Plan

Senator Thom Tillis (R-NC) sent a letter yesterday to President Joe Biden again condemning the Administration’s December 2023 proposal to allow agencies to consider pricing in deciding whether and when to “march in” on patent rights. Under the proposed framework, which sources have told IPWatchdog is close to being finalized, an agency may consider “[a]t what price and on what terms has the product utilizing the subject invention been sold or offered for sale in the U.S.” and whether “the contractor or licensee [has] made the product available only to a narrow set of consumers or customers because of high pricing or other extenuating factors”.

Federal Circuit Highlights Differences in Statutory and Article III Standing in Patent Cases

On May 1, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Intellectual Tech LLC v. Zebra Technologies Corp. reversing a Western District of Texas ruling that dismissed patent infringement claims for lack of constitutional standing. In so doing, the Federal Circuit found that Article III standing was not extinguished by the plaintiff’s default on a patent security agreement that granted a secured third party the right to assign the patents at issue in the appeal.

CAFC Vacates Enhanced Damages Judgment Due to Preclusive Effect of Intervening PTAB Decisions

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision today vacating and remanding with instructions to dismiss as moot a district court final judgment that granted enhanced damages for willful infringement to Packet Intelligence LLC. The appeal was brought by NetScout Systems, Inc. against Packet and relates to a co-pending case in which the CAFC today affirmed several decisions of the Patent Trial and Appeal Board (PTAB) holding all challenged claims of four of Packet’s patents unpatentable as obvious.

Tips for Using AI Tools After the USPTO’s Recent Guidance for Practitioners

The U.S. Patent and Trademark Office (USPTO) recently released new guidance for practitioners using artificial intelligence (AI)-based tools. The guidance primarily serves as a reminder of longstanding requirements and best practices for patent and trademark practitioners. For example, patent practitioners have a duty of candor and good faith to the USPTO and a duty of confidentiality to their clients. The guidance does not announce any new law or rule regarding practicing before the Office;  rather, it provides some insight into how the Office expects practitioners to operate when incorporating AI-based tools into their practice.

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